Citation Nr: 0110309
Decision Date: 04/09/01 Archive Date: 04/17/01
DOCKET NO. 99-05 414 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
left shoulder disability.
(The issue of entitlement to waiver of recovery of
overpayment of nonservice-connected pension benefits in the
amount of $4,193.00 is the subject of a separate appellate
decision.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
INTRODUCTION
The veteran had active service from July 1973 to April 1975.
This case comes before the Board of Veterans' Appeals (Board)
from a decision rendered in July 1998 in which the New
Orleans, Louisiana, Regional Office (RO) of the Department of
Veterans Affairs (VA) determined that new and material
evidence had not been submitted that would serve to reopen a
claim of entitlement to service connection for a left
shoulder disability.
FINDINGS OF FACT
1. In December 1988, the Board denied service connection for
a left shoulder disability.
2. The evidence received since December 1988, with regard to
the veteran's claim of entitlement to service connection for
a left shoulder disability, is cumulative, and is therefore
not new.
CONCLUSIONS OF LAW
1. The Board's December 1988 decision, wherein it was
determined that service connection was not warranted for a
left shoulder disability, is final. 38 U.S.C.A. § 7104 (West
1991).
2. The evidence received subsequent to the Board's December
1988 decision does not serve to reopen the veteran's claim of
entitlement to service connection for a left shoulder
disability. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A decision of a duly-constituted rating agency or other
agency of original jurisdiction is final and binding as to
all field offices of the Department as to written conclusions
based on evidence on file at the time the claimant is
notified of the decision. 38 C.F.R. § 3.104(a) (2000). Such
a decision is not subject to revision on the same factual
basis except by a duly constituted appellate authority. Id.
A claimant has one year from notification of a decision of
the agency of original jurisdiction to file a notice of
disagreement (NOD) with the decision, and the decision
becomes final if no NOD is filed within that time.
38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R.
§§ 3.160(d), 20.302(a) (2000). Governing statutory and
regulatory provisions stipulate that both unappealed rating
decisions and decisions of the Board are final, and may be
reopened only upon the receipt of additional evidence that,
under the applicable statutory and regulatory provisions, is
both new and material. 38 U.S.C.A. § 5108 (West 1991); see
also 38 U.S.C.A. §§ 7104(b) and 7105 (West 1991).
In order to reopen a claim that has been previously denied
and which is final, the claimant must present new and
material evidence. 38 U.S.C.A. § 5108. "New" evidence
means more than evidence that has not previously been
included in the claims folder, and must be more than merely
cumulative, in that it presents new information. Colvin v.
Derwinski, 1 Vet. App. 171 (1990). See also Evans v. Brown,
9 Vet. App. 273, 284 (1996), wherein the United States Court
of Appeals for Veterans Claims, formerly the United States
Court of Veterans Appeals (Court) held that the question of
what constitutes new and material evidence requires referral
only to the most recent final disallowance of a claim.
In addition, the evidence, even if new, must be material, in
that it is evidence not previously of record that bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself
or in connection with evidence previously assembled is so
significant that it must be considered in order to decide
fairly the merits of the claim. 38 C.F.R. § 3.156(a); see
also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The
claimant does not have to demonstrate that the new evidence
would probably change the outcome of the prior denial.
Rather, it is important that there be a complete record upon
which the claim can be evaluated, and some new evidence may
contribute to a more complete picture of the circumstances
surrounding the origin of a claimant's injury or disability.
Hodge, 155 F.3d at 1363.
When presented with a claim to reopen a previously and
finally denied claim, VA must perform a two-step analysis.
Manio v. Derwinski, 1 Vet. App. 140 (1991). First, it must
be determined whether the evidence submitted by the claimant
is new and material. Second, if new and material evidence
has been presented, the claim is to be reopened and evaluated
on its merits; in such circumstances, all evidence, both old
and new, will be considered by VA after it ensures that its
duty to assist has been fulfilled.
In the instant case, service connection for a left should
disorder, characterized as a left shoulder separation, was
denied by the Board in December 1988, following review of
evidence that included the veteran's service medical records,
contentions by the veteran that he injured his left shoulder
in 1974 while in service, post-service private medical
records indicating that he injured his left shoulder in 1978
while at work, and the report of a June 1979 VA medical
examination. The Board, based on its review, found that a
chronic left shoulder disorder had not been present during
military service, nor objectively shown until several years
thereafter.
The evidence submitted subsequent to December 1988 includes
the report of a private medical report, dated in July 1983
and noting treatment of the veteran for a left shoulder
injury in 1978, following an on-the-job accident; private
medical records dated between 1996 and 1998 that pertain to
disorders other than a left shoulder problem; private medical
records dated in 1997 that reflect complaints of shoulder
impairment; the report of a March 1998 VA examination that
indicates
diagnoses to include history of fracture of the left clavicle
with bilateral shoulder arthralgia and lumbar thoracic
arthralgia; and a statement from the veteran, to the effect
that he injured his left shoulder while in service.
This evidence is new, in that it had not previously been
associated with the veteran's claims folder. It is not new,
however, as that term is defined in Colvin; that is, it does
not present new information. At the time that the Board
issued its decision in December 1988, his contentions that he
had incurred an inservice left shoulder injury, along with
post-service evidence showing that he reported the incurrence
of an on-the-job left shoulder injury in 1978 and that a left
shoulder disability was subsequently manifested, were already
of record. The evidence received since December 1988 must,
accordingly, be considered cumulative in nature, and does not
provide a basis for reopening this claim. Moreover, the
veteran has not put VA on notice that there are other records
that may be pertinent to his request to reopen his claim that
have not been sought. See Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98
(2000) (to be codified at 38 U.S.C. § 5103A).
In brief, the evidence received since December 1988 is not so
significant that it must be considered in order to decide
fairly the merits of the claim in accordance with 38 C.F.R.
§ 3.156(a) (2000). The Board finds, therefore, that new and
material evidence has not been submitted, and the veteran's
claim for service connection for a left shoulder disability
has not been reopened.
ORDER
New and material evidence has not been submitted with regard
to the veteran's claim for service connection for a left
shoulder disability. The claim has not been reopened, and
the benefits sought on appeal remain denied.
(The issue of entitlement to waiver of recovery of
overpayment of nonservice-connected pension benefits in the
amount of $4,193.00 is the subject of a separate appellate
decision.)
M. S. SIEGEL
Acting Member, Board of Veterans' Appeals